Home > Free Speech, Gun rights, Rights, South Dakota > Privacy rights versus first amendment rights in the gun debate: South Dakota SB 97

Privacy rights versus first amendment rights in the gun debate: South Dakota SB 97

January 21, 2013

1269850054 (1)The other day I looked at a few of the gun bills before the South Dakota legislature and added a few comments to each. I didn’t really analyze the wording of them too much, I was more worried about the intent. Since SB 97 has been getting so much negative attention I thought it would be worthwhile to actually look deeper into this bill. After reviewing this bill I believe my initial assessment may have been incorrect. (I have included the current revision of SB97 at the end of this post).

First I will touch on why I believe this bill was introduced. In New York a media organization used FOIA to retrieve the names and addresses of gun permit holders in Westchester and Rockland counties. This information was then used to create an interactive map showing the names and addresses of these permit holders. This interactive map still exists, however the name and address data have been removed to comply with a new law passed by the New York Legislature.

Some detractors of this bill will say “but South Dakota doesn’t require a permit to buy guns”. However those same detractors are supporting a federal law requiring background checks on the purchase of all firearms. Whether the name “permit” is used is irrelevant. If a government mandated background check is required to purchase a firearm, that is essentially a permit in all but name. I believe this bill has been introduced to preemptively protect the private data of South Dakota citizens no matter what happens at the federal level.

This is one of those times the libertarian in me must decide between “information should be available to all” and “privacy rights of individual must be protected”.

As a standard rule I am a fan of the Freedom of Information Act (FOIA). FOIA has allowed the citizens of the United States to view the activities of the government. By being able to view this activity a new level of accountability has been reached. The mainstream media in particular has been a big user of the FOIA to report on how government programs are actually being run. Transparency in government is always best!

But should the personal data of law abiding US citizens be subject to a FOIA request? I find it difficult  to support such a use of FOIA. The right to bear arms is a fundamental human-born right protected by the 2nd Amendment. Should private citizen data become available to the public just because those citizens are exercising their constitutionally protected right? How about private data regarding first amendment protected rights. Almost every day I exercise my first amendment right to free speech by posting on this blog. Should the government keep a list of political bloggers and allow the public to get my personal information? I would say no to this.

Do we as a society want the government to provide personal data of citizens to be used for political purposes? I would actually say the government should not be collecting such data to being with. However, since the government is collecting this data it is important they recognize the privacy rights of individuals. In my original post I had stated

This bill annoys me only because it should be unnecessary. Moral and ethical privacy standards should not have to be codified.

I stand by these words. But I should have continued to analyzed the bill before going further.

By deciding to publish the private information of law abiding citizens for political reason the media organization in New York crossed an ethical line that should not be crossed. The organization in question happens to be a left-leaning corporation. But I could see a right-leaning organization doing the same thing with private data such as welfare check recipients. Data should be protected no matter what political party uses that data, or how good their intentions are. I still think the media organization in question crossed an ethical line. But crossing ethical lines is not necessarily a reason to create a law.

Even though I think the media organization in question crossed an ethical line, I do not think  they did anything that should be illegal. The true criminal act in this case was executed by the government. The government should not have allowed the personal information of private citizens to be given out simply because they were exercising constitutionally protected rights.

That is where SB 97 breaks down. Here is the main deal-breaker of this bill:

No person, newspaper, periodical, publication, or electronic medium may publish or make public any information with the intent…

SB 97 prevents citizens from using their right to free speech and it prevents news organizations from using their freedom of press rights. Both of these rights are protected by the First Amendment of the US Constitution. For this reason I simply cannot support SB 97.

Instead of restricting the individual free speech and freedom of press rights the legislatures in Pierre must look at how the data is handled. The legislatures involved in this bill should go back to the drawing board and create a bill that restricts government from sharing the private data of lawful citizens. A law with the following spirit should be written instead (I say spirit because I’m not sure of the best legal way to say it):

No government agency shall share the private data of citizens engaged in a right protected by the US Constitution. This includes the address, location, telephone number, e-mail address, or other electronic contact information.

A bill such as this would protect the privacy of citizens engaged in Constitutionally protected rights without trampling on first amendment rights. Instead of making a gun-specific privacy rights bill the legislature in Pierre should strengthen the privacy rights of all citizens engaged in protected rights. Taking such an action should receive support from legislatures of almost any political background.



South Dakota Senate Bill 97

This bill was introduced by Senators Monroe, Begalka, Ewing, Jensen, and Otten (Ernie) and Representatives Hoffman, Ecklund, Greenfield, Haggar (Don), Heinemann (Leslie), Hickey, May, Miller, Nelson, Olson (Betty), Rounds, Russell, and Stalzer. Here is the text of SB 97:

FOR AN ACT ENTITLED, An Act to prohibit the publication of certain information pertaining to firearm possession and ownership.


Section 1. No person, newspaper, periodical, publication, or electronic medium may publish or make public any information with the intent of revealing the identity or location of any person in this state based on the second person’s legal ownership or possession of a firearm. Such prohibited information includes any information that would enable another person to contact or locate the person who owns or possesses the firearm, as follows:

(1) The name, address, location, telephone number, e-mail address, or other electronic contact information of the person who owns or possesses a firearm; and

(2) Any other information relating to any weapons permit, background check, or other information pertaining to the ownership, possession, or procurement of firearms by the person.

A violation of this section is a Class 1 misdemeanor.

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